State team heading to investigate Ka Loko

The group will seek the reasons behind the fatal dam breach

KILAUEA, Kauai » Investigators from two state agencies will descend on the Ka Loko Reservoir next week to study the site of the March 14 dam breach that killed seven people.

"A large scientific team" of at least 10 experts hired by the state attorney general's office will be on hand to find out exactly what caused the breach, Attorney General Mark Bennett said yesterday.

And the state Public Utilities Commission, which began an investigation April 13, is scheduled to do its own site inspection of the dam Wednesday, said Stacey Djou, chief legal counsel of the commission.

Meanwhile, in Honolulu yesterday, Bennett agreed with a state Senate resolution that will set up a special deputy attorney to spearhead the investigation.

The Attorney General's outside experts, though, are expected to help determine the future of both the civil and criminal investigations into the dam breach.

"The professional qualifications (of those) doing the work are unimpeachable," Bennett said.

Before dawn on March 14, Ka Loko Dam broke, sending nearly a half-billion gallons of water surging to the sea and sweeping seven people to their deaths. Three bodies were found but four are still missing.

Dam experts, surveyors, engineers and even a biologist started their two-week job Thursday that will try to determine whether the dam was just old or if someone was responsible for the breach, Bennett said.

"We're going into this with no (prior) judgments," he added. "We just want to get the facts."

One of the "crucial questions" the experts will try to answer is whether the earthen dam overtopped, Bennett said.

Overtopping, which causes about 35 percent of all U.S. dam failures, according to the U.S. Department of Agriculture, is when water overflows the earthen dam, eroding the other side and eventually compromising the dam's integrity.

Gordon Rosa, property manager for dam owner James Pflueger, has asserted that the water was nowhere near the top of the dam, either when he checked it the night before the breach or afterward, judging by the debris line. Rosa and those close to Pflueger have said the dam just was old and blew out.

If the overtopping did not occur, it is possible that the continued conversations about a spillway become moot. The spillway, designed to be an emergency safety valve to prevent overtopping, has been the source of much debate over its location and existence.

While Pflueger's detractors say the spillway was tampered with, Pflueger and Rosa have repeatedly said no work was done on the area after Pflueger bought two-thirds of the reservoir, including the dam, in 1987.

Bennett added that while experts will be working with ground-penetrating radar, there will be no "no excavating on this trip."

First, they have to try to prove what happened.

"It is necessary for us to do the best we possibly can to determine the physical causes of the failure," said Bennett.

Bennett, though, might not be in charge of the investigation for long.

A Senate committee approved a resolution yesterday, House Concurrent Resolution 192, that, if passed by both houses, would draw up a list of people who could handle the investigation, and Bennett would pick from the list.

The Legislature is calling for an independent investigation because, as the resolution notes, the Attorney General is charged with investigating and prosecuting civil and criminal actions but must also defend the state in such actions.

"Thus there is a possibility that the Attorney General may find itself in the position of not only prosecuting or suing a state agency, but defending it as well," the resolution said.

The appointed investigator would be charged with investigating the role of the state, Kauai County and private landowner in the dam's collapse. Additionally, he or she will prepare a report, to be completed in December, and also recommend legislation or government action to prevent another tragedy.

There is another investigation already under way, but its focus is the Kilauea Irrigation Co., which supplies agricultural water from Ka Loko Reservoir to about 20 farmers in the area.

It is a public utility, said Djou, so by state law the PUC is required to investigate any accident involving a public utility that results in the loss of life. The consumer advocate, part of the state Department of Commerce and Consumer Affairs, is also mandated by law to represent the interests of utility consumers, so they are also a party in that investigation.

Djou cautioned that the commission's investigation "does not at this point intend to imply or presume wrongdoing by Kilauea Irrigation."

The PUC order limits the investigation to whether the breach was caused by Kilauea Irrigation's operations; whether a statute or rule within the PUC's investigation had been violated; the impact of the breach on the irrigation company's operations; and the steps, if any, that can prevent similar incidents.

Pflueger and Rosa, meanwhile, have previously blamed Kilauea Irrigation for its lack of maintenance on the dam and reservoir, as well as the state for its lack of oversight and inspection.

Pflueger has said that Kilauea Irrigation was charged with the maintenance and upkeep of the dam, pursuant to an agreement between partial reservoir owner the Mary Lucas Trust and C. Brewer & Co., which formerly owned Kilauea Irrigation and two-thirds of the reservoir, including the dam.

Pflueger, one of about a dozen beneficiaries of the trust, bought his share of the reservoir from C. Brewer.

The PUC investigation is "a standard investigation, so I'm not worried about it," said Tom Hitch, owner and operator of Kilauea Irrigation. "I'm not worried about the AG's investigation, either."

Hitch said he has been cooperating fully with the Attorney General and the PUC, and is scheduled to take the commission's investigators to Ka Loko Wednesday.